VARKEY Vs. THRESIA
LAWS(KER)-1955-3-1
HIGH COURT OF KERALA
Decided on March 25,1955

VARKEY Appellant
VERSUS
THRESIA Respondents

JUDGEMENT

- (1.) "The first defendant in O. S. No. 18 of 1123 on the file of the District Court of Parur against whom a decree for past and future maintenance has been passed in favour of his wife, the first plaintiff, and one of his daughters, the second plaintiff, appeals, and the main question for consideration is whether a Christian wife (Syrian Roman Catholic) is entitled to separate maintenance from her husband. So far as the decree granted to the daughter, second plaintiff, is concerned, learned counsel for her in this court does not support the decree of the court below in view of the decision of this court in 1952 K. L. T. 595. The question is important as affecting the entire community and the only precedent appears to be the one in 24 T. L. J. 281. We consider that the case is an important one and that there should be an authoritative decision of a Full bench of this court on the point. We, therefore, refer the case to a Full Bench for disposal. P. K. Subramonia Iyer, J. M. S. Menon, J. " The first plaintiff is the second wife of the first defendant. Second plaintiff and third defendant are their children. The second defendant is the son of the first defendant by his first wife. The first defendant and the first plaintiff were living in the house in plaint item No. 2 with their children. The first defendant had executed a will bequeathing this property to the plaintiffs and the third defendant. It was alleged in the plaint that at the instigation of the second defendant and acting under the influence of liquor the first defendant began to ill-treat the first plaintiff and that in Makaram 1120 he assaulted her and drove her away from the house. Soon afterwards, the third defendant also was sent away from the house and the house was dismantled by the first defendant. The plaintiffs and the third defendant went and lived in the first plaintiff's father's house and they were being maintained by her relations. Form the plaint schedule items which belong to the first defendant he is getting an annual income of not less than Rs. 1,000/ -. Plaintiffs are entitled to get at least Rs. 175/- per annum for their maintenance from the first defendant. Arrears of maintenance from Makaram 1120 and future maintenance at that rate were claimed in the suit. There was also a prayer to have the maintenance made a charge on the plaint schedule properties. It was further alleged in the plaint that Rs. 200/- and movables worth Rs. 447/- belonging to the first plaintiff were kept in the house in plaint item no. 2 and that they were misappropriated by defendants 1 and 2. The money and the value of the movables were claimed from defendants 1 and 2.
(2.) ALL the three defendants filed separate written statements in the case. The first defendant denied the allegation in the plaint that he ill-treated and assaulted the first plaintiff and drove her away from his house. He contended that the plaintiffs deserted him without any justifiable cause at the instigation of the first plaintiff's brother. The house in item No. 2 was not dismantled by him. It got dilapidated as it was left unoccupied. He was not bound to maintain the plaintiffs since they went away from his house without any valid reason and he is prepared to maintain them according to his means if they return and live with him. The income from the plaint schedule properties will not exceed Rs. 200/- a year and the claim for Rs. 175/- per annum as maintenance is, in any case, excessive. The allegation in the plaint that the first plaintiff had kept Rs. 200/- in the house in plaint item No. 2 was denied. The movables that belonged to the first plaintiff were taken away by her when she left the house. In the written statement filed by the second defendant he supported the first defendant and denied liability for any of the amounts claimed in the plaint. The third defendant supported the plaintiffs. She was married but is now a widow. She contended that she was entitled to get her Streedhanam charged on the plaint schedule properties. She had no objection to a decree being given to the plaintiffs for maintenance charged on the plaint schedule properties subject to her right to Streedhanam. The main question that was considered by the court below was whether there was valid reason for the plaintiffs to leave the house of the first defendant and to claim separate maintenance from him. The court found that the first plaintiff was being ill-treated by the first defendant, that the plaintiffs were driven away from the house in plaint item No. 2, and that, therefore, the plaintiffs were justified in refusing to live with the first defendant. It was accordingly held that the plaintiffs were entitled to claim separate maintenance from the first defendant. The income from the plaint schedule properties was found to be only Rs. 200/- a year and it was held that the first plaintiff was entitled to get maintenance at the rate of Rs. 100/- a year and the second plaintiff at the rate of Rs. 331/3 a year. A decree was given for arrears of maintenance at that rate from 15. 10. 1120 till 31. 12. 1124 and the first plaintiff was allowed to recover future maintenance at the rate of Rs. 100/- per year from 1. 1. 1125 her death or re-marriage. Maintenance was not, however, made a charge on the plaint schedule properties. Interest was allowed on arrears of maintenance at 6 per cent per annum. The claim for Rs. 200/- and value of movables was disallowed. The second defendant was not made liable for any portion of the plaint claim. Plaintiffs were allowed to recover proportionate costs from defendants 1 and 2. The main ground taken in the memorandum of appeal was that the court below went wrong in finding that there was valid reason for the plaintiffs to refuse to live with the first defendant and to claim separate maintenance from him. The rate of maintenance was also questioned. The second defendant filed a memorandum of objection in which he objected to the decree making him liable for the costs of the plaintiffs. As can be gathered from the order of reference, at the time of arguing the appeal before the Division bench, learned counsel for the appellant contended that, according to the personal law of the parties, a wife is not entitled to claim maintenance from her husband. The parties are Syrian Catholics. Since the question is an important one affecting the community in general the Division Bench though it desirable to have it decided by a Full Bench. It was under these circumstances that the appeal happened to be referred to a Full Bench.
(3.) IT was not contended by the first defendant in his written statement that he was not bound to maintain his wife. His only contention was that the plaintiffs went away fro his house without any valid reason and that he was not liable to maintain them so long as they refused to live with him. This is what is stated in paragraph 12 of the written statement: Ground No. 6 in the memorandum of appeal relating to this point is to the following effect: "the lower court ought to have found that the personal law of the parties does not allow the wife to claim separate maintenance where she has refused to live with the husband". IT would appear from this that even at the time of filing the appeal the first defendant had no case that he is not bound to maintain his wife in any event and that his only contention was that he was not liable to maintain her so long as she refused to live with him. IT was only at the time of arguing the appeal that the appellant took up the position that according to the personal law of the parties the husband is not legally bound to maintain his wife. There is no statute law in the State relating to the question. Of course, under the Code of Criminal Procedure, a wife, to whichever community she may belong, can apply to the Magistrate for an order for maintenance against her husband who, having sufficient means, neglects or refuses to maintain her. The provision in that Code compelling the husband to maintain his wife and children is intended to prevent vagrancy and it has nothing to do with the question whether under the personal law governing the parties the wife has a civil right to claim maintenance from her husband. The travancore Christian Succession Act does not deal with the question. As to whether under the customary law governing the Christian community the husband is legally bound to maintain his wife was not considered by the court below. In the nature of the contention raised by the first defendant in the case there was no occasion for the court to go into that question. It is a matter of common knowledge that suits are filed in the courts of the State by Christian wives for maintenance against their husbands and decrees are given in such suits awarding maintenance. It does not appear that a contention has been raised in any suit till now that, according to the personal law of the christians, the husband has no legal obligation to maintain his wife. The only reported case in which the question of a Christian husband's liability to maintain his wife was considered by the Travancore High Court is Thoma v. Rahel (24 T. L. J. 281 ). In that case also the contention of the husband was not that he was not in law bound to maintain his wife but that the wife was not entitled to separate maintenance so long as she refused to live with him without justifiable cause, and the only question that was considered in the case was whether the wife was entitled to claim separate maintenance if without valid reason she refused to live with her husband. This is clear from paragraph 3 of the judgment which is to the following effect: "the allegations on which the claim for separate maintenance is based are habitual ill-treatment by the defendant, his disreputable ways of life and the consequent necessity for the plaintiff to take shelter in her parent's house. The law as to the wife's claim to get separate maintenance from the husband is well defined and in this case the arguments on both sides proceeded on the understanding that the rules of the hindu Law relating to maintenance to a wife, consonant as they are with the general principles of jurisprudence are applicable to the parties here though christians and in my view there is no impropriety in such application, as the differences in religion and caste are immaterial in a matter of this kind. Among Hindus as well as Christians, marriage creates a special status from which springs the rights and duties of married people as such, one of which being the duty of the husband to maintain the wife provided she in her turn discharges her marital obligations. Under the Hindu Law, a wife is not entitled to separate maintenance from her husband unless she proves that by reason of his misconduct or by his refusal to maintain her in his own place of residence or other justifying cause, she is compelled to live apart from him: Ulakamma and others v. Ganapathi Achari and others (6 T. L. R. 37); but if she quits him of her own accord, either without cause or on account of such ordinary quarrels as are incidental to married life in general, she can set up no claim to a separate maintenance, Surampalli Rangaramma v. Surampalli Brambaze (I. L. R. 31 mad. 338) and A. Seenyya Reddi v. A. Mangamma (A. I. R. 1927 Mad. 1159 ). The english Law as to the liability of the husband to maintain the wife, and the cessation of her right if she leaves him without his consent in circumstances which do not justify her in living apart, is similar. Then again nothing will justify a Hindu wife in leaving her home except such violence as renders it unsafe for her to continue there or such ill-usage as would be termed cruelty in an English Matrimonial Court (Matangini Dasi v. Jogendra Chunder Mullick) (I. L. R. 19 Cal. 84 ). On the question of what is legal cruelty between man and wife, there is not material difference as between the English Law and the Hindu and Muhammedan Law (Yamunabai and Narayan Jaganath Bhide v. Narayan Moreshvar pendse) (I. L. R. 1 Bom. 164 ). It is not suggested that, in a case of this kind the customary law of the Syrian Christians is different. The plaintiff has to stand or fall according to the allegation of cruelty and misconduct she had put forward in the plaint. The burden is heavily upon her in the peculiar circumstances of this case".;


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